Nirvana Wins Lawsuit Against Nevermind Baby as Judge Dismisses Child Pornography Complaint Again

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Nirvana has won the lawsuit over their Nevermind cover art.

Over the weekend, U.S. District Judge Fernando Olguin dismissed the lawsuit which alleged child pornography — filed by Spencer Elden, the man photographed in the 1991 album cover art as a baby — on the grounds that he waited too long to file the lawsuit.

"In short, because it is undisputed that [Elden] did not file his complaint within 10 years after he discovered a violation… the court concludes that his claim is untimely," Olguin wrote, according to Rolling Stone.

"Because plaintiff had an opportunity to address the deficiencies in his complaint regarding the statute of limitations, the court is persuaded that it would be futile to afford plaintiff a fourth opportunity to file an amended complaint," continued the judge.

Photo of Krist NOVOSELIC and Kurt COBAIN and Dave GROHL and NIRVANA
Photo of Krist NOVOSELIC and Kurt COBAIN and Dave GROHL and NIRVANA

Paul Bergen/Redferns

RELATED: Nirvana 'Nevermind' Baby's Lawsuit Against Band Alleging Child Pornography Dismissed — For Now

Bert Deixler, a lawyer for Nirvana, told PEOPLE shortly after, "We are pleased that this meritless lawsuit has been brought to a just conclusion."

Meanwhile, Margaret Mabie, Elden's lawyer, told PEOPLE the "lawsuit was dismissed based on a misunderstanding of the statute of limitations" — and his notice of appeal has been filed. "This ruling's interpretation of the statute of limitations on Masha's Law contravenes over fifteen years of well-settled precedent and the legislature's intended purpose of the law."

"Under this reading of the law, child pornography remedies vaporize once the victim in the contraband image turns 28 years old," she said. "Under this logic, any child pornography producer— such as Masha Allen's original abuser — could simply wait out the clock and then re-distribute abusive material with impunity."

Mabie continued, "Spencer's victimization as a child remains frozen in time. His childhood self continues to be invaded and he will be repeatedly victimized as long as the Nevermind cover continues to be distributed."

Elden, now 31, first filed suit against surviving Nirvana members Dave Grohl and Krist Novoselic, Kurt Cobain's estate and Kirk Weddle, the image's photographer, in August 2021, alleging child sexual exploitation.

He claimed that his legal guardians never consented to his image being used for the album cover and asked for $150,000 in damages, along with attorney fees. Elden also accused the rockers of failing to protect him from being sexually exploited, and he claimed that having his naked body on a famous album cover as a baby caused him to suffer "lifelong damages."

"Defendants used child pornography depicting Spencer as an essential element of a record promotion scheme commonly utilized in the music industry to get attention, wherein album covers posed children in a sexually provocative manner to gain notoriety, drive sales, and garner media attention, and critical reviews," the complaint read.

In their motion to dismiss, however, the defendants hit back at Elden's allegations, claiming that he "has spent three decades profiting from his celebrity as the self-anointed 'Nirvana Baby.'"

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"Elden's claim that the photograph on the Nevermind album cover is 'child pornography' is, on its face, not serious," the motion read. "A brief examination of the photograph, or Elden's own conduct (not to mention the photograph's presence in the homes of millions of Americans who, on Elden's theory, are guilty of felony possession of child pornography) makes that clear."

The defendants also argued that the suit was time-barred, and that it was Elden's father and Elden himself who revealed his identity as the baby, and "publicly celebrated" the image.

As noted in the motion, Elden has spoken publicly about the image many times and has even recreated it — first in 2008 at age 17, and then again in 2016 for the album's 25th anniversary. (He told the New York Post he was paid $200 for the 2016 photo, the same amount his dad told NPR in 2008 he was offered for the photo of Elden as a baby.)

The suit was later dismissed in January, before Elden's legal team reopened and amended it a few days later.